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Can Harsh Voter ID Laws Threaten Democracy? A Judge Says ‘Yes’

Can Harsh Voter ID Laws Threaten Democracy? A Judge Says ‘Yes’

A ruling overturning Wisconsin's tough voter ID law says: “A government that undermines the very foundation of its existence—the people’s inherent, pre-constitutional right to vote—imperils its legitimacy as a government by the people, for the people, and especially of the people.”

The most aggressive of these have been voter ID laws that place dramatic new burdens on the elderly, students, low-income and minority citizens who want to participate in the democratic process.

Since the 2010 election results gave Republicans full control of statehouses across the country, dozens of states have considered proposals for variations on the model voter ID proposals advanced by ALEC, a corporate-funded group that brings together business interests and conservative legislators to advance agendas that make it easier for corporations to influence elections, and harder for citizens to participate in them.

Eight states, including Alabama, Kansas, Rhode Island, South Carolina, Tennessee, Texas and Wisconsin either made existing voter ID laws dramatically stricter or enacted new laws that were condemned by groups such as the League of Women Voters as voter-suppression initiatives. Only a veto by New Hampshire Governor John Lynch, a Democrat, prevented the first-in-the-nation primary state from enacting a law that proponents openly acknowledged was part of a push to erect barriers to voting by college students. And the issue has not died in New Hampshire, or a number of other battleground states.

With New York University’s Brennan Center detailing how 11 percent of the voter age population of the United States lacks government-issued photo identification, the push for voter ID laws has been condemned by National Association for the Advancement of Colored People president Benjamin Jealous as a “massive attack on voting rights.”

But ALEC’s allies in the states—such as Kansas Secretary of State Kris Kobach, who along with ALEC itself helped draft Arizona’s harsh anti-immigration law, and the group’s Wisconsin leader, legislative Joint Finance Committee co-chair Robin Vos—have continued the push, often taking the lead in advancing voter ID laws against significant opposition from civil rights and open government groups.

Now, however, the wheels are coming off the initiative—not just in the South, where the US Justice Department has significant flexibility to monitor laws that effect voting rights but in swing states of the North.

Monday saw the US Department of Justice extend its previous objections to restrictive voter ID laws in Southern states, where the federal government has the authority under the Voting Rights Act of 1965 to block changes in voting procedures that might maintain (or renew) historic patterns of discrimination.

As it did in December, when it prevented implementation of South Carolina’s controversial voter ID law, the Obama administration has now blocked a similar law in Texas.

The South Carolina law was blocked because it adversely affected African-American voters. The Texas law, which was signed last year by ALEC-favorite Rick Perry, was determined to be discriminatory toward Hispanics.

“Even using the data most favorable to the state, Hispanics disproportionately lack either a driver’s license or a personal identification card,” Thomas Perez, the head of the Justice Department’s civil rights division, wrote in a pointed letter to the director of elections for the Texas Secretary of State.

The South Carolina and Texas interventions are a big deal, as they represent the first instances in almost twenty years of the federal government’s rejecting a voter-identification law.

But, on Monday, another front in the fight against voter suppression opened in Wisconsin, where Governor Scott Walker—an ALEC alumnus—signed a voter ID law so extreme that it was decried by the state’s major civil rights, voting rights and open-government groups.

The League of Women Voters, hardly a radical organization, decried the voter ID law as a “fraud” and filed one of several law suits against the measure that experts said would disenfranchise tens of thousands of voters going into not just the fall presidential race in a battleground state but the recall election that has been forced upon anti-labor Governor Scott Walker.

On Monday, just minutes after the Department of Justice announced it would block the Texas voter ID law, Dane County Circuit Court Judge Richard Niess ruled that Wisconsin’s strict voter ID law is unconstitutional.

The dramatic decision by Niess did not hesitate to reject the argument that strict voter ID laws are made necessary by fears of voter fraud. Nor did he hesitate to use the word “suppression.”

“Without question, where it exists, voter fraud corrupts elections and undermines our form of government. The legislature and governor may certainly take aggressive action to prevent its occurrence. But voter fraud is no more poisonous to our democracy than voter suppression. Indeed, they are two heads on the same monster.” wrote Niess in his decision. “A government that undermines the very foundation of its existence—the people’s inherent, pre-constitutional right to vote—imperils its legitimacy as a government by the people, for the people, and especially of the people. It sows the seeds for its own demise as a democratic institution.”

With that in mind, Judge Niess issued an order that “permanently enjoined forthwith from any further implementation or enforcement” of the voter ID law.

The ruling by Niess will undoubtedly be challenged. But if it withstands the legal tests to come, it extends the fight against voter suppression out of the South—where the Voting Rights Act offers some protection—and into battleground states such as Wisconsin, Ohio and Pennsylvania.

Niess found protections for voting rights in Wisconsin’s state constitution, noting that “as a matter of law under the Wisconsin Constitution, sacrificing a qualified elector’s right to vote is not a reasonable exercise of the government’s prerogative to regulate elections.”

Other judges will be able to find protections in other state constitutions—and in the broader reading of federal equal-protection guarantees that is long past due.